Delhi District Court
Sh. Raman Kumar Sawhney vs The Axis Bank (Old Name Uti Bank) on 11 August, 2014
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRAL)11,DELHI
Suit No.488/09
Unique Case ID No. 02401C0428022009
Sh. Raman Kumar Sawhney
S/o Late Sh. Om Prakash Sawhney
R/o 2nd Floor, H-331
New Rajinder Nagar
New Delhi-60 ......Plaintiff
Versus
The Axis Bank (Old name UTI Bank)
Through its manager,
Branch-78, Rajinder Nagar Market
Old Rajinder Nagar, (West Delhi),
New Delhi-60
.....Defendant
Date of Institution of Suit : 16.09.2009
Date when reserved for orders : 26.07.2014
Date of Decision : 11.08.2014
JUGEMENT
1 Vide this judgment I shall decide a suit for recovery of Rs. 6,45,000/-
filed by the plaintiff against the defendant. The brief fact necessitated in filing
the present suit are given as under:-
2 The plaintiff is having savings bank account bearing No.
224010100001595 with the defendant. The official of the defendant in
connivance with anti social elements fraudulently by forging the signatures of
the plaintiff, withdrew a sum of Rs.3,00,000/- vide cheque No. 035400 on
18.09.2006and a sum of Rs. 3,45,000/- vide cheque No. 035398 on Suit No. 488/09 Page no. 1/11 06.10.2008, from the account of the plaintiff.
3 The plaintiff lodged a complaint with the police on 11.12.2006 and an FIR bearing No. 180/06 under Section 384/420 of IPC was registered in PS Rajender Nagar. The plaintiff also informed the defendant about said fraud vide letter dated 09.10.2006. The defendant being the master of its employee is thus vicariously liable to make the loss of the plaintiff but defendant has failed to return the money in spite of repeated requests and service of legal notice dated 31.08.2009. As per the plaintiff defendant is liable to pay a sum of Rs. 6,45,000/- along with interest @ 24% per annum.
4 Pursuant to the summons, defendant appeared and filed its written statement taking preliminary objection that the suit is not maintainable as plaintiff has not come with clean hands; that there is no cause of action for filing the suit; that suit is not maintainable for non-joinder of necessary parties.
5 On merit it is averred that the defendant is bound to honour the cheque issued by the account holder under the provision of Negotiable Instrument Act. It is further stated that the customers are issued facility of cheque book, the account holder can use the cheques by issuing the same in favour of other parties. Once the cheques are issued, the defendant is bound to honour the said cheque provided there is a sufficient balance in the account and the cheque belongs to the account holder. The cheque in question was apparently in order in all respects and the signatures of the said cheque tallies with the specimen signatures recorded with the bank and there is no other instructions like stop payment etc. Suit No. 488/09 Page no. 2/11 6 It is further stated that the defendant cannot be held responsible if the account holder keep the cheque book open for misuse by their staff members or public persons. It is stated that bearer cheques bearing No. 035400 dated 18.09.2006 for Rs. 3,00,000/- was presented to Lajpat Nagar and 035398 dated 05.10.2006 of Rs. 3,45,000/- was presented to States house branch on 06.10.2006. As these cheques were apparently in order in all respects and after satisfying that signatures tallied with the specimen signatures recorded with the bank, defendant had released the payment to the payee in terms of provision of Negotiable Instrument Act. It is denied that official of the defendant had withdrawn a sum of Rs.3,00,000/- vide cheque No. 035400 and Rs.3,45,000/- vide cheque No. 035398 by forging the signatures of the plaintiff. It is also denied that defendant is vicariously liable to pay the amount of Rs. 6,45,000/-. Other averments have been denied, it is prayed that suit be dismissed with cost.
7 The plaintiff has filed replication to the written statement thereby reiterated the averment made in the plaint and denied the averment made in the written statement.
8 On the basis of the pleadings of the parties vide order dated 27.04.2010 following issues for adjudication:-
(1) Whether the plaintiff is entitled to recover a sum of Rs.
6,45,000/- from the defendant? OPP (2) Whether the plaintiff is entitled for the interest if so, for what rate and for what period? OPP (3) Whether the present suit is bad for non-joinder of necessary party? OPD Suit No. 488/09 Page no. 3/11 (4) Whether the plaintiff is entitled for relief claim? OPP.
(5) Relief.
9 In order to prove his case, plaintiff has examined himself as PW-1 who reiterated the averment made in the plaint in his examination in chief. PW-1 exhibited statement of account as PW-1/A. Note dated 09.10.2006 as Ex.PW1/C. Reply dated 15.08.2006 as Ex.PW1/D. Notice dated 31.08.2009 Ex.PW1/E. AD and UPC as Ex.PW1/F & Ex.PW1/G. 10 The plaintiff also examined Inspector Kailash Chand, SHO PS Kirti Nagar as PW-2 who brought the record of FIR No. 180/2006 Ex.PW2/B. He also brought the record of forensic report Ex.PW-2/A. He also brought the original cheque No. 035398 and 035400 dated 05.10.2006 and 18.09.20006 as PW-2/C & PW2/D. 11 The plaintiff has also examined Sh. Nitin Grover, Assistant Manager, Axis Bank as PW-3 who brought bank statement Ex.PW3/A. All these witnesses have been duly cross examined by Ld. Counsel for the plaintiff.
12 In order to answer the claim of the plaintiff, defendant has examined Sh. Sandeep Kashyap, Assistant Vice President and Branch Head of defendant as DW-1 who reiterated the averment made in written statement in his examination in chief. DW-1 exhibited his attorney as Ex.DW1/1. Copy of account Opening Form of the plaintiff as DW1/2. Copy of the letter received from the plaintiff and reply of the defendant as Ex.DW1/3 to 5. DW-1 has been thoroughly cross examined.
Suit No. 488/09 Page no. 4/1113 I have heard both the Ld. Counsels for the parties and perused the pleadings and evidence led on record. My issue wise findings is as under:-
14 ISSUE NO. 1 Whether the plaintiff is entitled to recover a sum of Rs.6,45,000/- from the defendant? OPP The plaintiff has taken a plea that he is having account with the defendant bank. The official of the defendant in connivance of some anti social elements fraudulently withdrew a sum of Rs.3,00,000/- vide cheque No. 034500 dated 18.09.2006 and a sum of Rs. 3,45,000/- vide cheque No. 035398 dated 06.10.2008 by forging the signatures of the plaintiff from his account. The defendant being the master of its employees is vicariously liable to make loss of the plaintiff good. But defendant has failed to pay the amount of Rs. 6,45,000/- despite various requests and service of the legal notice dated 31.08.2009.
15 The defendant has taken a plea that the defendant is bound to honour a cheque issued by account holder under the provision of Negotiable Instrument Act. Provided there has been sufficient balance in the account and the cheque belongs to the account holder. As per the defendant, the cheques in question, were in order in all respect and the signatures of the account holder were tallied with the specimen signatures available with the bank and there was no instructions from the plaintiff not to make payment qua those cheques. As per the defendant, they cannot be held liable for an amount of Rs. 6,45,000/- to the plaintiff as they released the payments in compliance of the provision of the law and in discharge of their duties.
16 In order to substantiate their plea, both the parties have led their respective evidence.
Suit No. 488/09 Page no. 5/1117 An examination of the pleadings and evidence led on record shows that the plaintiff has filed a suit for recovery of Rs.6,45,000/- against the defendant on the ground that the official of the defendant in connivance with anti social elements withdrew a sum of Rs.6,45,000/- from the account of the plaintiff by forging his signatures over the cheque No. 034500 and 035398. As per the plaintiff, the defendant being the bank is vicariously liable for the fraudulent act of his official. The defendants have controverted the claim of the plaintiff and pleaded that plaintiff release payment by cheque in compliance of the provision of Negotiable Instrument Act as said cheque was found in order and after verifying the signatures of the account holder from the specimen signatures the said amount was released.
18 The plaintiff has claimed that defendant is vicariously liable for the fraudulent act of its employees as the official of the defendant in connivance with anti social elements fraudulently withdrew a sum of Rs.6,45,000/- by forging his signatures over the cheque bearing no. 034500 and 035398. The plaintiff though claimed that the official of the defendant fraudulently withdrew a sum of Rs.6,45,000/- from his account but he has not mentioned the name of any of the official who fraudulently withdrew the said amount from the account of the plaintiff. No particular whatsoever has been given by the plaintiff either in the plaint, replication or in his evidence as to which of the employee of the defendant fraudulently withdrew Rs.6,45,000/- from his account by forging his signatures over cheque bearing No. 035400 and 035398. In the absence of any material and evidence being placed on record in this regard, I am of the considered view that plaintiff has failed to substantiate his plea that the official of defendant fraudulently withdraw a sum of Rs. 6,45,000/- from his account.
Suit No. 488/09 Page no. 6/1119 The plaintiff has claimed that the official of the defendant withdrew the amount of Rs.6,45,000/- by forging his signatures over cheque bearing no. 035400 and 035398. The cheque book containing of cheque no. 035400 and 035398 was issued by the defendant bank in the name of the plaintiff. The PW-1 has deposed in his cross-examination that cheque bearing no. 035398 and 035400 are pertaining to cheque book which was issued to him. The cheque book containing cheque no. 035398 and 035400 was issued to the plaintiff and same was within his power and possession. When the cheque book containing above cheques was in power and possession of the plaintiff then how come these cheques reached to the official of the plaintiff who stated to have forged the signatures of the plaintiff over these cheques remained unexplained.
20 It is relevant to mention that FIR Mark B was registered on the complaint of the plaintiff. A perusal of the Mark B shows that plaintiff had stated that the cheque book used to remain in his office and two officials namely Pradeed Singh and Hoshiyar Singh used to maintain the office record including cheque book etc. The cheque book containing the questioned cheques was lying in the office of the plaintiff which was being maintained by the official of the plaintiff namely Pradeed Singh and Hoshiyar Singh. These cheques as per the plaintiff stolen from the office of the plaintiff. The cheque could have been stolen from the office by the official of the plaintiff or by any person who had access in his office. But the plaintiff has very conveniently not impleaded the official whose name he has mentioned in the FIR mark-B in the plaint nor he has explained as to how these cheques which were lying in his office came into possession of the official of the defendant. In the absence of any material on this regard, I am of the considered view that plaintiff has failed Suit No. 488/09 Page no. 7/11 to prove on record as to how and in what manner cheque bearing no. 035400 and 035398 came into possession of the official of the defendant.
21 The plaintiff has further taken a plea that the official of the defendant have forged the signatures over these cheques and withdrew a sum of Rs. 6,45,000/-. The plaintiff, however, has not named any of the official who according to him has forged his signatures nor the plaintiff has placed any material on record to substantiate his plea that his signatures were forged over these cheques by some person. The plaintiff has examined Inspector Kailash Chand, SHO as PW-2 who has placed on record the report of handwriting expert Ex.PW2/A. The report Ex.PW2/A has not been proved by the plaintiff on record as per the law as the plaintiff has not examined the maker of the said record. Moreover, the report Ex.PW2/A clearly stipulates that it is not possible to express any opinion on the basis of material supplied. The plaintiff though claimed that his signatures were forged over the cheques but he has not led any evidence to substantiate his above plea.
22 The plaintiff has sought to recover Rs. 6,45,000/- against the defendant on the ground that defendant being the bank is vicariously liable for the fraudulent act of its employee. The plaintiff has claimed that the official of the defendant fraudulently withdrew a sum of Rs. 6,45,000/- from his account by forging his signatures but he has failed to name any of the official who committed the said fraud and withdrew Rs.6,45,000/- from his account. The plaintiff has also claim that his signatures was forged over those cheques but he has not placed any material on record to substantiate his plea that his signatures were forged over the cheques and the amount was withdrawn by the official of the bank.
Suit No. 488/09 Page no. 8/1123 The said cheque book containing question cheques was lying in the office of the plaintiff where persons namely Pradeed Singh and Hoshiyar Singh were working and they were also withdrawing the money from the account of the plaintiff as disposed by him during his cross examination. The cheques in question were presented for encashment which was apparently containing the signatures of the plaintiff who was the account holder. There was sufficient amount in the account of the plaintiff to honour those cheques. The plaintiff had not given any instructions to the defendant not to encash those cheques up till 07.10.2006 vide his letter Ex.DW1/3. The defendant thus under legal obligation to release the payment against those cheques as per the law. The official of the defendant verified the signatures appearing on those cheques from the specimen signatures available in the record and after having satisfied qua his signatures released the said payment. The said act and conduct of the official of the defendant was in due discharge of their official function and cannot be term as fraudulent for which defendant bank can be held vicariously liable as claimed by the plaintiff.
24 In view of the above facts and circumstances, I am of the considered view that plaintiff has failed to prove on record that the officials of the defendant fraudulently withdrew a sum of Rs. 6,45,000/- from the account of the plaintiff vide cheque No. 035398 and 035400 by forging his signatures. The plaintiff has failed to prove on record that the defendant is vicariously liable to make the loss of plaintiff good. The plaintiff is thus not entitled to recover a sum of Rs. 6,45,000/- from the defendant. The plaintiff has failed to discharge the onus of Issue No. 1, same is accordingly decided against the plaintiff.
Suit No. 488/09 Page no. 9/1125 ISSUE NO.2 Whether the plaintiff is entitled for the interest if so, for what rate and for what period? OPP In view of my finding on Issue No. 1, I am of the considered view that plaintiff is not entitled for any interest as claimed. The plaintiff has failed to discharge the onus of Issue No. 2, same is accordingly decided against the plaintiff.
26 ISSUE NO. 3 Whether the present suit is bad for non-joinder of necessary party? OPD The defendant has claimed that the suit is bad for non-joinder of necessary parties. The plaintiff has controverted the said plea.
27 The defendant has claimed that the suit is bad for non-joinder of necessary parties but it is not pointed out as to which of the necessary party has not been impleaded. The defendant has also not pointed out as to how and in what manner the suit is not maintainable.
28 In view of the above, I am of the considered view that defendant has failed to prove on record that the suit is bad for non- joinder. The defendant has failed to discharge the onus of Issue No. 3, same is accordingly decided against the defendant.
29 ISSUE NO. 4 Whether the plaintiff is entitled for relief claim? OPP.
In view of my finding on Issue No. 1 & 2, I am of the considered view that plaintiff is not entitled for the relief claimed by him by way of present suit. The plaintiff has failed to discharge the onus of Issue No. 4, same is accordingly decide against the plaintiff.
Suit No. 488/09 Page no. 10/1130 RELIEF.
In view of the above, the suit filed by the plaintiff against the defendant is dismissed. No order of cost. Decree sheet be accordingly prepared. File be consigned to record room after due compliance.
Announced in the open court (PITAMBER DUTT)
On 11.08.2014 Additional District Judge
Delhi
Suit No. 488/09 Page no. 11/11